February 21, 2021 | My sixth-grade science teacher, fancying
himself too clever for corporal punishment, showed his particular
distaste for me by making me sit directly in front of him, my
desk touching his, so close I could smell and taste his
highly objectionable breath during his daily vituperations against
me and my "attitude." So close, too, he could not see my left
fingers, hidden behind my back, indicate "a," "b," "c," or "d"
to the entire class in response to his oral pop quizzes. Obtuse
to the end, he had no clue I could see through his paper, except
for where his thumb and fingers held it. All my peers were apprised
of that over a hirsute and gray turkey lunch.
"I don't understand why everyone always gets exactly the same
95," he said one day, never one to leave well enough alone. "Do
you think I'm stupid? Don't you know I know it's you?" The perfect
set-up. But bump, set...no spike, I said nothing. Even at that
age, I was ethically opposed to the use of that word, "stupid;"
it's cruel, and most often not true. My silence, of course, earned
me a brief vacation the faculty and staff of Cole Middle School
thought would be punitive. It's really hard to feel contrite,
though, when you're flush with pride in refraining from the use
of the word "stupid" in reference to an obviously stupid enemy.
If eschewing the use of the word "stupid" against obviously
stupid enemies can be considered a source of pride, Napster and
friends have a great deal to be proud of. On Monday, February
16, the 9th Circuit Court of Appeals rendered rendered a decision
stating that the injunction leveled against Napster by Judge Patel
several months ago is valid ("required," even, they say), but
added that Napster, Inc. may only be held liable for copyright
infringement if they fail to take action after being notified
of infringement. Thus the court placed some of the burden on record
companies and offended bands to show infringement. The real stupidity
came in the RIAA's response, when Hillary Rosen bleated, "We feel
that Napster's business model is morally and legally wrong and
we're very glad that the 9th Circuit Court agreed with us 100
percent." Business model? Napster, to date, has no business
Oh, Hillary. The RIAA could have helped bring a mutually beneficial--wildly
beneficial--business model to Napster, as Bertelsmann in its astute
foresight elected to do. The biggest coherent community of music
consumers anyone has ever seen--somewhere around 61 million users,
all huddled around a single server--is for the most part willing
to shell out at least five dollars a month to use Napster, and
a subscription model isn't that hard to implement, especially
when you have the vast resources the Big Five record conglomerates
have. I could do it, even, and I've only got about $19. The RIAA
could participate in this, profit substantially from it, and,
at long last, you, Hillary Rosen could come off looking like a
reasonable member of a reasonable institution. Instead, millions
of people read the headlines and heard the stories of your "triumph,"
and went home and downloaded this now ultra-infamous Napster client,
just to see what all the fuss was about. And just as before, during
the RIAA's attack on Diamond Multimedia's Rio, you look stupid.
And paranoid, and irrational. What is it exactly that you fear?
From here, it looks like a new means of targeted marketing and
distribution and profit is freaking you out; I don't know
how much the artists you claim to champion appreciate that.
Here's what's got Hillary so happy, lifted in an act of Fair
Use from Section VIII of the 9th Circuit Court of Appeals' decision:
"The district court correctly recognized that a preliminary
injunction against Napster's participation in copyright infringement
is not only warranted but required. We believe, however, that
the scope of the injunction needs modification in light of our
opinion. Specifically, we reiterate that contributory liability
may potentially be imposed only to the extent that Napster; (1)
receives reasonable knowledge of specific infringing files with
copyrighted musical compositions and sound recordings; (2) knows
or should know that such files are available on the Napster system;
and (3) fails to act to prevent viral distribution of the works."
This looks to be a death knell; how will Napster "act to prevent
viral distribution" in complicity with the ruling, I wonder? Why
didn't the Big Five just nip this whole thing in the bud by suing
Cerfnet? But in spite of all this legal condemnation I'm extremely
optimistic, for a change. Whatever happens, Napster, or the spirit
of a sued-dead Napster will ultimately prevail. The only alternative
to refusing to ally with Napster and its ilk is the Big 4--I won't
include Bertelsmann here, since they've made their peace with
the new distribution model--vanishing altogether, completely circumvented
by this Napster-bred consumer. The 61 million who have taken to
Napster will surely, if it dies, find a comparable alternative
appearing elsewhere, and simply use that. We want to subscribe
(for a reasonable fee, of course), we want to give artists their
due, but if you won't accommodate us, we'll use alterNapster,
or doppelNapster, or whatever. Big news: it's not that the music
is free, it's that it's easy to get. Add to that the frustration
and anger of artists watching this huge, unprecedented mass of
concentrated consumers made to go away under litigation brought
by people who claim to represent you, and you've got an industry
on the verge of rending itself into little bloody greedy bits.
Nothing can withstand those kinds of forces, not even the law
of the land.